CHAPTER-II: COMMERCIAL TAX EXECUTIVE SUMMARY

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1 CHAPTER-II: COMMERCIAL TAX EXECUTIVE SUMMARY What we have highlighted in this Chapter Increase in tax collection Target not achieved by the Internal Audit Wing Results of audit conducted by us in Our conclusion In this Chapter we present illustrative cases of ` crore selected from observations noticed during our test check of records relating to short levy of VAT, short/non levy of entry tax, evasion of tax and non levy of penalty, irregular exemption on declaration forms, short levy due to incorrect allowance of set-off, incorrect application of rate of tax etc. and deficiencies in the implementation of Saral Samadhan Yojna in the Commercial Tax Department. The actual receipts of the Department exceeded the Budget Estimates during by ` 6.25 crore. During the year, no unit was planned for audit by the Department due to non-availability of staff. We conducted test check of the records of 11 units relating to the Commercial Tax Department during the year and found 118 cases of incorrect grant of exemption/deduction, non/short levy of tax, incorrect determination of taxable turnover, application of incorrect rate of tax etc. amounting to ` 9.35 crore. During the year, the Department had recovered ` lakh in seven cases including ` 6.61 lakh in four draft paragraphs. The Department needs to improve the internal control system including strengthening of internal audit so that weaknesses in the system are addressed and omissions of the nature detected by us are avoided in future. It also needs to initiate immediate action to recover the short/non levy of tax, irregular exemption on declaration forms, incorrect application of rate of tax etc. pointed out by us, more so in those cases where it has accepted our contention. 119

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3 Chapter-II: Commercial Tax 2.1 Tax administration The Chhattisgarh Commercial Tax Department is responsible for levy and collection of Value Added T ax (VAT), Central Sales Tax (CST), Entry Tax (ET), Professional Tax (PT) and Luxury Tax (LT) in the State through assessment of cases of dealers. Commercial Tax Department contributes the major part of the revenue for the State. The Department implements the under mentioned Acts and Rules made thereunder: Chhattisgarh Value Added Tax Act, 2005 (CGVAT Act); Central Sales Tax Act, 1956 (CST Act); Chhattisgarh Entry Tax Act, 1976 (CGET Act); Chhattisgarh Commercial Tax Act, 1994 (CGCT Act); Chhattisgarh Professional Tax Act, 1995 and Chhattisgarh Luxury Tax Act, The Commercial Tax Department is headed by the Principal Secretar y at Government level. The Commissioner is the head of the Department and he is assisted in the discharge of his duties by four Additional Commissioners, 12 Deputy Commissioners (DCs), 26 Assistant Commissioners (ACs) and 69 Commercial Tax Officers (CTOs). 2.2 Trend of receipts from Taxes on Sales, trade etc. Actual receipts from Taxes on sales, trade etc. 1 during the years to along with the total tax receipts during the period is exhibited in the following table: Year Budget estimates Actual receipts Variation excess (+)/ shortfall (-) Percentage of variation Total tax receipts of the State (` in crore) Percentage of actual receipts vis-àvis total tax receipts , , (-) (-) , , , (+) , , , (+) , , , (+) , , , (+) , (Source: Finance Accounts of Government of Chhattisgarh) We found that during the year , the Finance Department (FD) had approved the budget estimate (BE) of ` 6,000 crore as against ` 6, crore 1 Major head Taxes on Sales, Trade etc (101 Receipts under Central Sales Tax Act, 102- Receipts under State Sales Tax Act, 103- Tax on sale of motor spirits and lubricants, 104- Surcharge on Sales Tax, 105- Tax on sale of Crude oil, 106- Tax on Purchase of Sugarcane, 107- Receipts of Turnover Tax, 108- Tax on the Transfer of Rights to use any goods for any purpose Act,1985, 109- Tax on Transfer of Property Goods involved in the execution of "Works Contract Act,1985" and 800- Other Receipts) 121

4 Audit Report (Revenue Sector) for the year ended 31 March 2012 proposed by the Department. The FD was accurate in estimating the BEs as the variation between BE and actual receipts was only 0.10 per cent. The above table indicates that collection from Taxes on sales, trade etc., contributed substantially to the tax revenue of the State. Overall collection of revenue under taxes on sales, trade etc. was more than the budget estimates during the period to , except in The percentage of actual receipts over total tax receipts of the State ranged between 52 and Analysis of arrears of revenue The arrears of revenue of Taxes on Sales, Trade (including VAT and Central Sales Tax), Entry Tax and Profession Tax as on 31 March 2012 amounted to ` crore of which ` crore was outstanding for more than five years. The following table depicts the position of arrears of revenue during the period to : (` in crore) Year Opening balance of arrears Closing balance of arrears (Source: Figures furnished by the Department) 2.4 Assessee profile As per the information furnished by the Department, the number of dealers registered under CGVAT Act, 2005 during the period was 64,393 of which 5,246 were large tax payers 2 and the remaining were small tax payers. Out of these dealers, returns were required to be filed by 55,539 dealers and 1,04,415 returns were received during the year. As regards the remaining returns, it was stated by the Department that the dealers have been directed to submit the same along with the advance tax payable. 2.5 Collection of VAT per assessee Year Number of assessees VAT Revenue as per Department (` in crore) VAT Revenue as per Finance Accounts (` in crore) Revenue/ Assessee (in `) ,499 2, , ,20, ,446 2, , ,67, ,727 3, , ,42, ,299 4, , ,24, ,393 5, , ,18, Large tax payers are the dealers whose annual tax liability is more than ` 60,000 and who are required to pay tax monthly.

5 Chapter-II: Commercial Tax It may be seen from the above table that there was a difference in the figures of VAT revenue as per Finance Accounts and the Department al figures which requires reconciliation. 2.6 Arrears in assessment The number of cases pending at the beginning of the year , assessments becoming due during the year, assessments disposed of during the year and those pending at the end of the year as furnished by the Department are mentioned in the following table: Name of tax Value Added tax Professional tax Opening balance ( ) Addition during the year Total number of assessment cases due Cases disposed during the year Cases pending at the end of the year Percentage of clearance (column 5 to 4) ,752 72,013 1,22,765 68,813 53, ,642 11,328 20,970 12,080 8, Entry tax 21,223 34,656 55,879 32,988 22, Luxury tax Tax works contract on Total 82,057 1,18,230 2,00,287 1,14,070 86, (Source: Figures furnished by the Department) The above table indicates that at the end of the year only 57 per cent of the total assessment cases had been disposed of by the Department. The Government may initiate timely action for expeditious disposal of the pending cases in the interest of revenue. 2.7 Cost of collection Collection from Taxes on sales, trade etc., the expenditure incurred on their collection and the percentage of such expenditure to gross collection during the years , and along with the relevant all-india average percentage of expenditure to gross collection of the preceding years are indicated in the following table: Year Collection Expenditure on collection of revenue Percentage of expenditure on collection (` in crore) All-India average percentage of expenditure to gross collection of preceding year , , , (Source: Finance Accounts of Government of Chhattisgarh) 23

6 Audit Report (Revenue Sector) for the year ended 31 March 2012 Heads of revenue Year We noticed that there was variation in the percentage of expenditure on collection of the Department during the years. The cost of collection of the Department decreased in as compared to the year , but the same increased in However, the cost of collection when compared to the all India averages during the three years was on the lower side. 2.8 Analysis of collection The break-up of the total collection from taxes on sales, trade etc., entry tax, profession tax and luxury tax at the pre-assessment stage and after regular assessment of taxes on sales, trade etc. during the year and corresponding figures for the preceding five years as furnished by the Commercial Tax Department is mentioned below: Amount collected at the preassessment stage Amount collected after regular assessment Penalty for delay in payment of taxes and duties Amount refunded Net collection as per department Net collection as per Finance Accounts (` in crore) Percentage of collection (column 3 to 7) Taxes on sales, trade, ET,PT and LT , , , , , , , , , , , , , , , It may be seen from the table that percentage of collection of taxes at the preassessment stage was the lowest during the year Impact of Audit Position of Inspection Reports (IR): During the years to , we had pointed out through our IRs non/short levy, non/short realisation, underassessment, loss of revenue, incorrect exemption, incorrect computation etc. with revenue implication of ` crore in 1,055 cases. Of these, the Department/Government had accepted audit observations in 206 cases involving ` 3.55 crore. The details are shown in the following table: Years of Inspection Report No. of units audited Amount objected No. of cases Amount accepted (` in crore) Amount No. of cases Amount Total 1,

7 Chapter-II: Commercial Tax Position of Audit Reports: During the last five years, through our Audit Reports, we had pointed out cases of underassessment, non/short levy of tax involving ` crore. The Department accepted observations of ` crore of which only ` 8 lakh had been recovered till March 2012 as shown in the following table: Sl. No. Year of the Audit Report Total money value Amount accepted (` in crore) Recovery made up to March Nil Nil Nil Nil Total The above table indicates that only 0.15 per cent of recovery has been made by the Department against the accepted amount which is negligible. We recommend that the Department may take steps to recover the amounts involved, at least in the accepted cases, as there is the risk of loss of revenue due to action becoming barred by limitation Internal audit Internal Audit Wing (IAW) of an organisation is a vital component of the internal control mechanism and is generally defined as the control of all controls. It enables the organisation to assure itself that the prescribed systems are functioning reasonably well. We observed that only one post of Assistant Commissioner, Commercial Tax was sanctioned for the Internal Audit Wing. Further, during the year , no internal audit was conducted due to transfer of the sole Assistant Commissioner posted in the wing. We recommend that the Internal Audit Wing of the Department may be strengthened by sanctioning more posts in the wing. 125

8 Audit Report (Revenue Sector) for the year ended 31 March Results of Audit We conducted test check of the records of 11 units relating to Commercial Tax Department during the year and found cases of underassessment, non/short levy of tax/interest/penalty, application of incorrect rates of tax etc. amounting to ` 9.35 crore in 118 cases which fall under the following categories: Sl. No. (` in crore) Category No. of cases Amount 1 Incorrect grant of exemption/deduction Non/short levy of tax Incorrect determination of taxable turnover Application of incorrect rate of tax Other irregularities Total During the year , the Department had recovered ` lakh in three cases pertaining to the current year. The Department had also recovered the full amount of ` 6.61 lakh in four cases pointed out as draft paragraphs. A few illustrative cases amounting to ` crore including observations detected during earlier years are mentioned in the succeeding paragraphs Audit observations We scrutinised the assessment records of Sales tax/value added tax (VAT), Central sales tax, Entry tax etc. in the Commercial Tax Department and found several cases of non-observance of the provisions of the Acts/ Rules, non/short levy of tax/penalty/interest, incorrect application of rate of tax, incorrect deduction from taxable turnover, incorrect exemption and other cases as mentioned in the succeeding paragraphs of this chapter. These cases are illustrative and are based on a test check carried out by us. Such omissions on the part of the Assessing Authorities (AA) are pointed out by us each year, but not only do the irregularities persist; these remain undetected till audit is conducted. There is need for the Government to improve the internal control system so that such omissions can be avoided. 26 1

9 Chapter-II: Commercial Tax COMMERCIAL TAX ACT 2.13 Evasion of tax and non-levy of penalty As per Section 28 of the Chhattisgarh Commercial Tax Act (CGCT) 1994, when an assessment has been made under the Act and if for any reason any sale or purchase of goods chargeable to tax under the Act during any period has been underassessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made or a set-off has been wrongly allowed, the Commissioner may, where the omission leading to such reassessment is attributable to the dealer, direct that the dealer shall pay by way of penalty in addition to the amount of tax so assessed, a sum not exceeding that amount. As per Schedule II of the CGCT Act 1994, Liquefied Petroleum Gas (LPG) was leviable to tax at the rate of 9.2 per cent including surcharge (15 per cent on tax) for the period and We found (August 2011) during test check of the assessment records of the Assistant Commissioner (AC), Raipur that a dealer engaged in purchase and sale of LPG, assessed between January 2008 and December 2008 for the period and , had total turnover of ` 3.48 crore and ` 3.25 crore respectively. Further cross-verification of the assessment records with the 59-A register revealed that the dealer had imported LPG valuing ` lakh and ` lakh during these years respectively against declarations in form 59-A 4. However, the above purchases were not accounted for in the books of accounts by the dealer and the corresponding sales, determined by adding 10 per cent profit 5 element in the purchases, were concealed for evading tax. This resulted in non levy of tax of ` 9.47 lakh. Besides this, maximum penalty of ` 9.47 lakh was also leviable (as shown in Appendix-2.1). After we pointed this out to the Department and Government (July 2012), the Government in its reply (December 2012) stated that demand of ` lakh has been raised, of which ` 4.11 lakh has been recovered. As regards assessment against 60 forms (closing balance of ), it has been stated that the matter is under investigation and further action shall be taken after receipt of information For the year part sale value of ` lakh has been determined presuming that closing balance of 60 declaration forms at the end of were consumed in the year and taking minimum value of the form as ` 64,300 on the basis of purchases made against each form during the year Form 59- A- A document issued by the Department to a registered dealer for importing goods from outside the state, indicating the name of the consignor and consignee, the place of dispatch, the destination and the description, quantity and value of the goods. Profit=Gross profit (tax paid)+transportation charges+ loading/unloading charges. 127

10 Audit Report (Revenue Sector) for the year ended 31 March Irregular exemption on declaration forms The Government vide notification dated exempted sale of iron and steel from levy of tax when sold by a dealer registered under the Adhiniyam and such dealer in support of his claim for exemption in respect of the sale of the said goods furnishes at the time of his assessment to the Assessing Authority, a declaration in form A-2 issued to him by the dealer manufacturing the said goods or a subsequent selling registered dealer selling such goods. We found (April 2011) during test check of the assessment records of Assistant Commissioner Commercial Tax (ACCT)-II, Bilaspur that a dealer engaged in trading and manufacture of iron and steel, assessed in February 2009 for the period , was allowed exemption of tax on the sale value of ` 3.53 crore supported by A-2 6 declaration forms. On scrutiny of the A-2 declaration forms, we noticed that the dealer had sold MS round and Tar Steel to unregistered dealers and the Assessing Officer (AO) while finalising the assessment incorrectly allowed exemption from levy of tax on the strength of A-2 declaration forms. Since the sale was made to unregistered dealers, the dealer was not eligible for exemption. This resulted in non levy of tax of ` 7.06 lakh. Besides, penalty was also leviable. After we pointed this out to the Department/Government (July 2012), the Department stated (December 2012) that demand of ` lakh has been raised Short levy due to incorrect allowance of set-off of tax We found during test check (May 2010) of According to section 13 of the CGCT Act, the assessment when a registered dealer purchases any goods records of the specified in Schedule II other than goods Commercial Tax specified in Schedule III which are tax paid Officer (CTO-I), goods in his hands and the sale thereof by the Bilaspur that a dealer selling registered dealer to him is otherwise engaged in exempt from tax the dealer shall be entitled to set-off for such tax-paid purchases. Further, in manufacture and sale of cement poles was the case of Commissioner of Commercial Tax, assessed in August CG Vs. Unique Rolling Mills (2003) VKN 583, 2008 for the period the Chhattisgarh Revenue Board held that The AO goods purchased from exempted units are not allowed set off of tax-paid goods and are therefore not eligible for ` 2.84 lakh on set-off. consumption of cement of ` lakh treating them as tax paid goods. Further scrutiny of bills pertaining to the case revealed that the The dealer in support of his claim for exemption in respect of the sale of the goods furnishes at the time of his assessment to the assessing authority a declaration in form A-2 issued by the selling dealer.

11 Chapter-II: Commercial Tax cement was purchased from dealers who had made purchases from M/s. Grasim Cement, which was an exempted unit. As the dealer had made purchases of cement which were already exempted from tax, the set-off allowed was irregular. Thus, incorrect set-off allowed on consumption of cement of ` lakh resulted in short levy of tax of ` 2.84 lakh. After we pointed this out to the Government/Department (July 2012), the Department stated (October 2012) that demand of ` 2.84 lakh has been raised (October 2011) against the dealer and his bank account has been frozen for early recovery of dues. Further report on recovery has not been received (December 2012).V 2.16 Short levy of tax According to entry no. 1 of Part IV of Schedule II of the CGVAT Act, all other goods not included in Schedule I and in part I, part II and part III of this schedule are taxable at the rate of 12.5 per cent. Hair oil being a residuary good is taxable at 12.5 per cent. Section 22 of CGVAT Act provides that the Commissioner shall, where the omission leading to assessment or re-assessment is attributable to the dealer, impose upon him a penalty of maximum two times the amount of tax assessed but which shall not be less than the amount of tax assessed. We found (November 2010) during test check of the assessment records of the Assistant Commissioner (AC), Commercial Tax, Raipur that a dealer engaged in purchase and sale of coconut oil (hair oil), mustard oil and spices assessed in September 2009 for the period April 2006 to March 2007 had a total turnover of ` 3.45 crore, out of which turnover of hair oil was ` 1.39 crore. The AO levied tax of ` lakh at the rate of four per cent on the turnover of hair oil. Since hair oil being a residuary item is taxable at the rate of 12.5 per cent, tax amounting to ` lakh 7 was leviable at the differential rate of 8.5 per cent (12.5-4=8.5). Thus, application of incorrect rate of tax resulted in short levy of tax amounting to ` lakh. Besides, penalty of ` lakh was also leviable. After we pointed this out to the Government /Department (July 2012), the Government stated (December 2012) that demand of ` lakh has been raised. Report on recovery has not been received (December 2012). 7 ` 139 lakh-` 5.36 lakh=`134 lakh*8.5/100=`11.39 lakh 129

12 Audit Report (Revenue Sector) for the year ended 31 March Application of lower rate of tax The State Government through Notification no. 45 dated notified the list of goods to be treated as Capital Goods for levy of tax at the rate of four per cent. Diesel engine and parts are not included in the list of capital goods. Further, as per CG VAT Act, 2005 all other items which are not mentioned in Schedule-I and part I to III of Schedule II shall be taxable at 12.5 per cent. Diesel engine being a residuary goods is taxable at the rate of 12.5 per cent We found (December 2011) during the test check of the assessment records of the Commercial Tax Officer (CTO), Circle I, Raipur that a dealer engaged in purchase and sale of diesel engine and parts, assessed in December 2010 for the period , had a total turnover of ` lakh which included sale of ` lakh of diesel engine and parts. While assessing the case, the AO levied tax amounting to ` 1.04 lakh at the rate of four per cent on the turnover of ` lakh and on the remaining sale of ` 1.48 lakh, the AO levied tax of ` 16,000 at the rate of 12.5 per cent. As diesel engine and parts are not capital goods and are also not mentioned in any of the Schedules, tax amounting to ` 3.01 lakh at the rate of 12.5 per cent was leviable on the sale of ` lakh. Thus, levy of tax at lower rate by the AO resulted in short levy of tax of ` 2.12 lakh. After we pointed this out to the Government /Department (July 2012), the Government stated (December 2012) that demand of ` 2.47 lakh has been raised. Report on recovery has not been received (December 2012). AC Drive, DC Drive, Programming Logic Controller System and Lubricating system are not included in the list as capital goods notified vide Notification no. 45 dated As per CGVAT Act, all other items which are not mentioned in Schedule-I and part I to III of Schedule II shall be taxable at 12.5 per cent. AC Drive, DC Drive, Programming Logic Controller System and Lubricating system being residuary goods are taxable at the rate of 12.5 per cent We found (January 2012) in the test check of the assessment records of the Assistant Commissioner Commercial Tax (ACCT)- III, Durg that a dealer engaged in manufacture and sale of electrical parts such as AC Drive, DC Drive, Programming Logic Controller System and Lubricating system was assessed in October 2009 for the period Sale of ` 2.79 crore was made by the dealer on which the Assessing Officer levied tax at the rate of four per cent treating it as capital goods. As the goods manufactured by the dealer were electrical goods, tax of ` lakh at the rate of 12.5 per cent was to be levied instead of ` lakh. Thus levy of tax at lower rate by the AO resulted in short levy of tax of ` lakh. After we pointed this out to the Government/Department (July 2012), the Department stated (September 2012) that the goods sold were machinery parts 30 1

13 Chapter-II: Commercial Tax of iron and steel industries and covered under notification no. 45 dated We do not agree as the above goods were not mentioned as capital goods in the above notification Non-levy of tax due to irregular input tax rebate We found (December According to Section 8 of CGVAT Act, tax 2010) in the test check shall be levied on goods specified in Schedule of the records of the II, at the rate mentioned in the corresponding ACCT-II, Durg that a entry in column (3) thereof. Further Section dealer engaged in 13 (b) of the Act provides for rebate of input manufacture and sale tax when a registered dealer purchases any of wires was assessed goods within the State of Chhattisgarh from in February 2010 for another such dealer after payment to him of the period April 2006 input tax and he shall claim or be allowed, to March The input tax rebate of such amount of tax, in such above dealer purchased manner and within such period as may be furnace oil of ` prescribed. The rate of tax prescribed for lakh on which the AO furnace oil is four per cent. allowed input tax rebate of ` 4.99 lakh at the rate of 12.5 per cent as against the admissible amount of ` 1.60 lakh calculated at the rate of four per cent. Thus the grant of Input Tax Rebate in excess of the admissible rate resulted in short-levy of input tax of ` 3.40 lakh. After we pointed this out to the Government/Department (July 2012), the Department stated (July 2012) that the case was reopened under Section 22 (1) and demand of ` 3.40 lakh has been raised. S A 131

14 Audit Report (Revenue Sector) for the year ended 31 March Non-levy of tax CENTRAL SALES TAX ACT According to Section 8 of CST Act, every dealer, who in the course of inter-state trade or commerce sells goods other than declared goods without 'C' form shall be liable to pay tax at the rate of 10 per cent or the rate applicable to the sale or purchase of such goods inside the State, whichever is higher. According to entry no. 50 of Part II of Schedule II of CGVAT Act, Flour, Atta, Maida, Suji, Besan etc. are taxable at the rate of four per cent. Further, the State Government vide notification no. 15 dated exempted Atta, Maida, Suji and Besan from payment of tax for the period but not Flour. Further, the Hon ble Allahabad High Court also held in the case of M/s. Vishambhar Sahai Sheetal Prasad Vs State of UP and others 2004 NTN that Atta (Wheat flour) and Besan (Gram flour) are two different commodities. We found (November 2011) during test check of the assessment records of the Assistant Commissioner, Division-II, Raipur that a dealer engaged in manufacture and sale of oils, oil seeds and soya flour was assessed in June 2010 for the period The dealer had a total turnover of ` crore as inter-state sale, out of which sale of soya flour of ` crore was made without C Form 8. The Assessing Authority (AA) allowed exemption on the same treating it as Atta. As flour was not exempted from payment of tax as per the above notification, and also being different from Atta, tax amounting to ` 1.55 crore at the rate of 10 per cent was leviable. This resulted in non-levy of tax of ` 1.55 crore. Besides, maximum penalty of ` 3.11 crore was also leviable. After we pointed this out to the Government/Department (July 2012), the Department stated (July 2012) that demand of ` 4.66 crore (including penalty of ` 3.11 crore) has been raised. Report on recovery has not been received (December 2012) C-form is a declaration form issued by the Department to a registered dealer for importing goods from outside the state at concessional rate of tax in course of interstate trade or commerce.

15 Chapter-II: Commercial Tax 2.20 Non-levy of entry tax ENTRY TAX ACT According to Section 3 (1) (a) of the Chhattisgarh Entry Tax Act (CGET Act), 1976, there shall be levied an entry tax on the entry in the course of business of a dealer of goods specified in Schedule II, into each local area for consumption, use or sale therein. Entry No. 53 of the Schedule provides for tax to be levied on All kinds of electrical and electronic goods except those specified elsewhere in this Schedule at the rate of one per cent. Mobile handsets which are electronic goods are not specified in the Schedule and hence are liable to be taxed as per entry no. 53. Further, the Hon ble Madhya Pradesh High Court also held in the case of M/s. Drive India Dot Com Vs State of MP and others 2011 (19) STJ that mobile handset is covered under wireless reception instruments and apparatus. Alternatively, it can also be covered in entry 53 which is relating to electronic and electrical goods. We found (November 2011) in the test check of the assessment records of the Assistant Commissioner (AC)-II, Raipur that a dealer engaged in purchase and sale of mobile handsets was assessed in June 2010 for the period The dealer received mobile handsets worth ` crore through stock transfer on which no entry tax was levied by the AO treating the same as goods covered under Schedule III of the Act. However, mobile handsets are electronic goods and are to be taxed as per entry no. 53 of the Act. Therefore, entry tax of ` 1.24 crore at the rate of one per cent on ` crore was leviable. Thus, failure on the part of AO to verify the entries of the Schedule and levy tax accordingly resulted in non-levy of entry tax of ` 1.24 crore. After we pointed this out to the Government/Department (July 2012), the Department had issued a circular (October 2012) to all the divisions directing them to check and levy entry tax on mobile handsets at the rate of one per cent in cases where it has not been levied. Further report on recovery has not been received (December 2012). 133

16 Audit Report (Revenue Sector) for the year ended 31 March Non-levy of tax We found (December 2010) According to Section 3 of the CGET during the test check of the Act, entry tax at the rate of one per assessment records of the cent shall be levied on the entry in Assistant Commissioner course of business of a dealer of goods Commercial Tax (ACCT), specified in Schedule-III into each Rajnandgaon that a dealer local area for consumption or use of engaged in manufacture and such goods but not for sale therein. As sale of rice bran and edible oil per Schedule III of the above Act, rice was assessed in January 2008 bran is taxable at the rate of 2 per cent and July 2009 for the period w.e.f when imported from April 2004 to March outside Chhattisgarh. The AO incorrectly allowed exemption of ` 3.83 crore on total purchases of ` crore in the year and exemption of ` lakh on total purchases of ` crore in the year on the basis of purchases of materials before commencment of production.also,there was under assessment of purchase turnover of ` 1.95 crore as the purchases of ` crore determined in respect of the same dealer by the AO earlier while finalising the ex-parte assessment for the year in February 2009, were not taken into account without assigning any reason. Thus, the exemption of ` 4.08 crore allowed for the years (` 3.83 crore) and (` lakh) and reduction (` 1.95 crore) in total purchases during was irregular. This resulted in non-levy of entry tax of ` 8.31 lakh (as shown in Appendix-2.2). Besides, penalty was also leviable. After we pointed this out to the Department and Government (July 2012), the Government stated (December 2012) that demand of ` lakh has been raised. Report on recovery has not been received (December 2012) Non-levy of entry tax due to irregular exemption We found (December 2010) in the test check of the assessment records of the ACCT-II, Durg that a dealer engaged in purchase and sale of Cast Iron (CI) pipes and fittings According to Section 3 of the CGET Act, there shall be levied an entry tax on the entry of goods specified in Schedule-II, into each local area for consumption, use or sale therein. Entry no. 31 of Schedule II of the Act prescribes one per cent tax on all types of sanitary goods and fittings. Further, in the case of M/s Mahesh Enterprises Vs State of Andhra Pradesh(2000)119 STC 578(AP), the Hon ble High Court (June 2000) held that Cast Iron pipes and fittings are different from Cast Iron and are not declared goods and thus are covered under the entry water supply and sanitary fittings. was assessed in November 2009 for the period April 2006 to March The dealer made purchases of CI pipes amounting to ` 3.49 crore. The AO allowed exemption on the above purchases treating CI pipes as different from iron and steel and covered under Schedule III. As CI pipes and fittings fall under the 34 1

17 Chapter-II: Commercial Tax category of all types of sanitary goods and fittings of Schedule II as per the above judgement, entry tax amounting to ` 3.49 lakh at the rate of one per cent should have been levied. Thus, failure on the part of AO to verify the entries of the Schedule resulted in non- levy of entry tax of ` 3.49 lakh. After we pointed this out to the Government/Department (July 2012), the Department stated (July 2012) that as there is no entry of all kinds of sanitary goods and fittings under Schedule II, CI pipes come under Schedule III and therefore no tax was levied. We do not agree as there is a specific entry for all kinds of sanitary goods and fittings in the Schedule Chhattisgarh Bakaya Rashi Saral Samadhan Yojana 2010 With a view to liquidate the Bakaya Rashi, 9 (outstanding dues) the Government of Chhattisgarh introduced the Chhattisgarh Vanij yik Kar (Bakaya Rashi) Saral Samadhan Yojana 2010 under Chhattisgarh General Sales Tax Act 1958, Chhattisgarh Vanijik Kar Adhiniyam 1994, Central Sales Tax Act 1956, Chhattisgarh Entry Tax Act 1976, Chhattisgarh Luxury Tax Act 1988 and Chhattisgarh Professional Tax Act, 1995 in November The cases of arrears were to be settled on payment of 60 per cent of the Bakaya Rashi. Any defaulter desirous of availing the benefit under the Scheme was required to submit the application in duplicate by 31 st January 2011 and to deposit the sanctioned Samadhan Rashi 10 (settlement amount) within 15 days from the date of receipt of notice. According to clause 4 of the Samadhan certificate (Praroop-3) issued by the Samadhankarta that no action would be initiated against the bakayadar for any offence/error under the relevant Act and no penalty would be levied against the bakayadar. In the case of M/s Vikas Enterprises vs. Assistant Commissioner (March 2007), the Hon ble Madhya Pradesh High Court also held that no penalty would be imposed and no action under the Act on account of any offence or error would be initiated against the bakayadar since cases under the scheme were disposed of and Samadhan certificates were duly issued in favour of the petitioner. The Department extended benefits aggregating ` crore to 9,507 bakayadars in the state. We test checked the records of 102 bakayadars in eight units 11 and observed that benefits aggregating ` 8.05 crore was extended to these bakayadars under the Yojna. The top 10 beneficiaries out of the above 102 bakayadars to whom more than 25 per cent of the total benefits (` crore) were extended are mentioned in the following table: Bakaya Rashi means the arrears of taxes, interest and penalties under different Acts relating to the assessment period up to 31March 2006 and pending as on 31 October Samadhan Rashi means the assessed and paid arrears of the considered cases under the Saral Samadhan Yojna, 2010 i.e. 60 per cent of the bakaya rashi. Three Additional Commissioner and Five Deputy Commissioner offices. 135

18 Audit Report (Revenue Sector) for the year ended 31 March 2012 Sl. No. Name of bakayadars Amount outstanding (` in lakh) Settlement Amount 1 M/s. Larsen and Toubro limited M/s. Budhia Auto M/s. Raghuvir Ferro Alloys Private Limited M/s. Kakkad Auto M/s. Jyoti Structure Limited M/s. Hi-Tech Abrasives Limited M/s. Sepco Electric Power Corporation Company Limited M/s. Botalda Tractors M/s. Kitchen Appliances M/s. ACC Limited ( Power Plant) Total Our scrutiny of the records relating to implementation of the Scheme revealed certain irregularities in 96 out of 102 test checked cases, as discussed in the succeeding paragraphs Non inclusion of penalty amount in computation of Bakaya Rashi 36 According to Rule 2(3) of the Chhattisgarh Vanijyik Kar (Bakaya Rashi) Saral Samadhan Yojana Niyam 2010, the Bakayadar shall be eligible for exemption upto 40 per cent of the outstanding dues as on and would have to pay balance 60 per cent of the outstanding amount as Samadhan Rashi. Further, according to Rule 2(3)( p) of Chhattisgarh Vanij yik Kar (Bakaya Rashi) Saral Samadhan Yojana Niyam 2010, all provisions regarding interest and penalty of Chhattisgarh Commercial tax Act, Central Sales tax Act, Entry tax Act etc. would be applicable under this Yojna. According to Section 32(9) of the Chhattisgarh Commercial Tax Act, 1994 read with Central Sales Tax, Entry Tax Act etc. if a dealer does not pay the tax assessed on him or the penalty imposed on him or any other amount due from him under the Act within a specified time, he shall be liable to pay penalty at the rate of 2 per cent per month on due tax, penalty or any other amount up to the date of payment. 1 We found (June 2012) during the test check of the saral samadhan records of three Additional Commissioners and two Deputy Commissioners (DCs) of Raipur division, two DCs of Bilaspur and one DC of Durg division that 88 bakayadars (defaulters) having total arrears of ` crore pertaining to the assessment period to availed the scheme for settlement of arrears. Scrutiny of the records revealed that demand notice/ Revenue Recovery Certificates/ appeal orders for depositing the tax were finalised between June 1995 and October These bakayadars had failed to deposit the amount of tax within

19 Chapter-II: Commercial Tax specified time and the delay in payment of tax ranged between 12 and 5602 days. However, the Samadhankarta authorities calculated the bakaya rashi up to without taking penalty into consideration. Thus, failure on the part of the Samadhankarta authority to include the amount of penalty on the above arrears resulted in short realisation of Samadhan Rashi of ` 5.25 crore (60 per cent of ` 8.76 crore) (as shown in Appendix-2.3) Loss of revenue due to short levy of Samadhan Rashi [k According to rule 2(3)( ) of Chhattisgarh Vanijyik Kar (Bakaya Rashi) Saral Samadhan Yojana Niyam 2010, the payment made by the Bakayadar in the first/second appeal or revision would be adjusted against the Bakaya Rashi treating it as part payment of tax. We found (June 2012) in the test check of the Saral Samadhan records of three Additional Commissioners and two DCs of Raipur and one DC of Bilaspur division that 41 bakayadars, having bakaya rashi of ` 9.85 crore availed the facility of the scheme. The bakayadars had made part payment of ` 3.35 crore in the first/second appeal. As per the above rule, the payment was to be adjusted against the bakaya rashi only. However, scrutiny of the records revealed that the Samadhankarta Authorities adjusted the part payment of ` 3.35 crore paid in first/second appeal against the Samadhan Rashi (as calculated by the Samadhankarta Authorities) of ` 5.89 crore in lieu of Bakaya Rashi of ` 9.85 crore. Thus adjustment of the part payment of appeal rashi against Samadhan Rashi led to short realisation of Samadhan Rashi of ` 1.35 crore (as shown in Appendix 2.4) 137

20 Audit Report (Revenue Sector) for the year ended 31 March Delay in payment of Samadhan Rashi According to rule 6 and 9(4) of Chhattisgarh Vanijyik Kar (Bakaya Rashi) Saral Samadhan Yojana niyam 2010, the Bakayadar will have to pay Samadhan rashi within 15 days from date of receipt of Praroop-2, failing which the benefit of the scheme will not be available. Further, in the case of D.M.Woollen Mills Pvt Ltd. & Another vs. Commercial Tax Department & Another the Hon'ble Madhya Pradesh High Court held (March 2005) that the assessee claiming benefit under the said scheme is bound to comply with the condition of payment of the settlement amount within 15 days. In case of failure to pay the settlement amount within 15 days, the benefit of the scheme would not be available. Further, in the matter of M/s Vikas Enterprises vs Assistant Commissioner, the Hon'ble Madhya Pradesh High Court held that (March 2007) that no penalty would be imposed and no action under the Act on account of any offence or error would be initiated against the bakayadar since cases under the scheme were disposed of and Samadhan certificates were duly issued in favour of the petitioner. We found (June 2012) in the test check of the saral samadhan records of two Additional Commissioners of Raipur division that in two cases Bakaya Rashi was ` 1.11 crore. The Samadhankarta Authority determined the Samadhan Rashi of ` lakh after allowing relief of ` lakh. Further scrutiny of records revealed that the Bakayadars had deposited the Samadhan Rashi with delays ranging from six to 28 days after the permissible period of 15 days after receipt of praroop Since the bakayadars failed to deposit the Samadhan rashi in time, the benefit of the said Yojana should not have been allowed to them. Thus, failure to pay the settlement amount within the permissible period resulted in loss of revenue of ` lakh (as shown in Appendix-2.5). After we pointed this out to the Department/Government (July 2012), the Department replied (September 2012) that as per the judgement of the Hon ble Madhya Pradesh High Court in the case of M/s Vikas Enterprises vs. Assistant Commissioner, no penalty/action would be imposed once samadhan certificate was duly issued in favour of the petitioner. Since the Department was aware of the judgement of the Hon'ble Madhya Pradesh High Court, it should have taken all precautions while finalising the cases under the Yojna to avoid any loss of revenue Praroop 2- A proforma for determination of settlement amount by the Samadhan karta and to be issued to the concerned bakayadar to deposit the settlement amount. 1

21 Chapter-II: Commercial Tax Wrong adjustment of Refund Adjustment Order in Samadhan Rashi As per Chhattisgarh Va nijyik Kar (Bakaya Rashi) Saral Samadhan Yojana Niyam 2010, any part payment of the Bakayadar would be adjusted against the Bakaya Rashi treating it as payment of tax. During scrutiny (June 2012) of the Saral Samadhan records of Additional Commissioner, Raipur division we found that in case of a bakayadar having arrears of tax amounting to ` lakh, the Samadhankarta Authority determined the samadhan rashi at ` 8.98 lakh. Further scrutiny of records revealed that Refund Adjustment Order (RAO) amount was adjusted from 60 per cent dues of total dues before considering the refund amount. It should have first been deducted from total dues and 60 per cent of remaining dues (i.e. after adjustment of RAO) was to be deposited which was not done. The Samadhankarta Authority wrongly adjusted refund of ` 6.80 lakh against Samadhan rashi in lieu of Bakaya rashi. Thus, wrong adjustment of RAO resulted in short realisation of ` 2.72 lakh. We pointed this out to the Department/Government (July 2012) for their comments; their replies are awaited (November 2012) Conclusion Since the cases cannot be reopened after issue of Samadhan Certificates as per the provisions of the Scheme, it was expected that due care should have been taken by the Samadhankarta Authorities while determining the settlement amount. The instances of non inclusion of penalty, short levy of Samadhan Rashi, irregular extension of benefit and wrong adjustment of refund adjustment order as pointed out in the preceding paragraphs were indicative of lack of required attention on the part of the assessing authorities which resulted in a direct loss to the State Exchequer. 139